NCRA officials survey tracks through the Eel River Canyon.

It’s been more than three years since the North Coast Railroad Authority (a state agency) tried to ditch its own state-financed Environmental Impact Report with the brazen claim that it is exempt from following state environmental laws.

If you’ll recall, two local environmental nonprofits — Californians for Alternatives to Toxics (CATs) and Friends of the Eel River (FOER) — sued the agency over its plans to reopen the southern section of its line for freight traffic. The groups argued that the Environmental Impact Report (EIR) for that project was inadequate because it failed to address the impacts of reopening the entire line, all the way up to Humboldt Bay, which had long been the agency’s stated goal. (Not so much lately, however.)

Last year the NCRA board voted 8-1 to decertify that EIR, hoping to step out from under the burden of state environmental law by claiming federal preemption. Specifically the agency argued that the federal Interstate Commerce Commission Termination Act took precedence over all state laws, including CEQA.

And last year, an appellate court agreed, ruling that freight rail traffic is technically interstate commerce and thus falls under the domain of federal regulators with the Surface Transportation Board. 

Trouble is, another court of appeals elsewhere in the state came to the opposite conclusion. As the local environmental groups noted in a press release issued last week, “That court found that where the state is acting as an owner, not a regulator, federal preemption does not shield the state-owned rail line from having to comply with CEQA as a condition of its state funding.” (Download the full press release by clicking here.)

The NCRA (again, a state agency) is the owner of its entire rail line, though it leases operations on that line to the Northwestern Pacific Railroad Co.

Complicating matters even further, the U.S. Surface Transportation Board last week issued a 2-1 decision pertaining to California’s high-speed rail project, which of course is far more expensive than anything the NCRA is dealing with but which has some similar dynamics. 

Like the NCRA, the California High-Speed Rail Authority has appealed to federal regulators, asking for permission to ignore CEQA, and the U.S. Surface Transportation Board agreed, ruling that federal law “expressly pre-empts any state law attempts to regulate rail construction projects.”

“It’s a real overreach,” said Scott Greacen, executive director of Friends of the Eel River. But while Greacen is disappointed in the STB’s decision, he said it doesn’t address the fundamental question in his own group’s case. That question, he said, is, “What’s the obligation of a state agency, one that has received state funding, to follow state environmental law?”

That question will now head to the state supreme court, which agreed last week to review the latest appeal from CATs and FOER.

If this all sounds overly bureaucratic and confusing, you’re not alone. Stuart Flashman, the lawyer representing opponents to the California High-Speed Rail project, told the Fresno Bee that the effects of the STB’s latest ruling “are about as clear as mud.”

Greacen suspects the local environmental groups’ case against the NCRA may ultimately head to the U.S. Supreme Court, which has not proved particularly friendly to environmental causes the past decade, he noted.